When it comes to proactive law enforcement, intelligence and counterterrorism operations, the New York City Police Department – the NYPD – is viewed by many of its counterparts as one of the most innovative and successful police departments in the nation’s history.
However, the NYPD has also gained another, more insidious reputation in recent years for what many regard as an unprecedented challenge to privacy and civil liberties in America and what others regard as overreach internationally.
In addition to managing a vast international intelligence infrastructure with officers stationed in at least a dozen posts around the world, some believe the NYPD has made a deliberate effort to avoid federal oversight by not participating in the Department of Homeland Security’s national Fusion Center effort, which would open the department’s surveillance programs to greater scrutiny and legal challenges.
Federal law enforcement and homeland security officials are raising concerns that New York’s finest have become a de facto federal agency without the oversight.”
Fusion centers have emerged as important information sharing centers for law enforcement and counterterrorism organizations over the past decade. Data collection and analysis teams, staffed by federal, state and local law enforcement and private security specialists sift through data to uncover, predict and hopefully prevent major crimes and terrorist attacks. They are the backbone of the DHS’ post-9/11 homeland security strategy.
As of 2011, the Department of Homeland Security and Department of Justice recognized and supported 72 fusion centers, although only about 35 are fully staffed and equipped.
But New York City and its police department have never been a part of the national fusion center effort, and as a result, have not been subjected to the same privacy and civil liberties policy requirements that in large part dictate funding eligibility for other states and cities around the country.
The result, according to officials and experts familiar with the inner workings of counterterrorism information sharing, has been an NYPD domestic surveillance initiative that has collected information on American citizens without probable cause and stored that information in computers and databases that are subjected to little or no legal oversight.
Moreover, federal law enforcement and homeland security officials are raising concerns that New York’s finest have become a de facto federal agency without the oversight.
The Moroccan Initiative
A federal official involved in counterterrorism information sharing, who spoke to AOL Government on condition of anonymity, said at the senior management level, the NYPD is a “completely different animal” than law enforcement departments in any other city in America when it comes to their activities and their often heavy-handed influence over the homeland security apparatus.
“They’re bullies” the way they operate, the official said, noting that the NYPD finds support among a multitude of former New York police officers who now serve in various homeland security roles throughout the federal government.
“As long as I’ve been involved in homeland security, the NYPD has had exemptions,” said the official, who has served in the federal government since well before the terrorist attacks of 9/11. “They’ve gone beyond community policing. They’re really another federal agency.”
The exemptions the official was referring to include the NYPD’s recent efforts to spy on minority communities throughout New York, particularly Muslims and immigrants of Moroccan descent.
Documents unearthed last month by the Associated Press detailing the so-called “Moroccan Initiative” show that the NYPD has developed electronic dossiers on entire communities, including individuals who have not been charged with any crimes and are not the subjects of any official law enforcement investigations.
Federal law enforcement agents were made aware of the NYPD’s latest domestic surveillance effort,”but it didn’t look right from the start,” the official said, and federal officials “chose not to get involved.”
Symptom of a Larger Problem
As the details of the NYPD’s domestic surveillance activities continue to come to light, some homeland security professionals and former police officers are joining a growing chorus of concern led by the New York Civil Liberties Union and Muslim community groups that this and other surveillance programs of the NYPD may be a symptom of a larger problem – namely the lack of federal oversight of the nation’s largest police force and biggest recipient of federal homeland security grant funding.
The NYPD did not answer AOL Government’s request for comment. However, less than 24 hours after requesting comment from the NYPD, AOL Government received an impromptu call from a DHS official who declined to be identified on the record, but who was familiar with the details of our questions to the NYPD and who defended the NYPD’s efforts.
“There is no closer relationship with a city out there than the relationship between the DHS and the City of New York,” the DHS official.
The NYPD’s efforts, nevertheless are starting to raise questions, according to others familiar with the broader national picture.
“New York follows its own prescription for everything it does from a counterterrorism perspective,” said Robert Riegle, the former director of the State and Local Programs Office within the DHS Intelligence and Analysis Directorate.
Riegle, who is considered the founding father of the nationwide fusion center effort, said the DHS deliberately required all of the other 72 fusion centers around the country to produce privacy and civil liberties policies before any additional federal funding was provided. But New York City never made an effort to become part of the larger national information sharing infrastructure.
“It never even began discussions about complying with those policies,” said Riegle. “They are wholly unique and amongst themselves.” And they do what they want “because nobody’s challenged them. Nobody has the courage politically to make them pull back,” he said.
“The hypocrisy is this – why would we demand that all of the fusion centers have privacy and civil liberties policies in place and available for review before any funding is granted but we don’t do that with New York City, which is the largest recipient of grant money?”
To date, the federal government has provided the State of New York with more than $3.5 billion since 2002. State administrative agents receive DHS grants and distribute that money under various programs such as the Urban Area Security Initiative (UASI). This year, New York City received more than $151 million in grants under the UASI – more than twice the amount received by any other city. (See DHS’ Homeland Security Grant Program guidance document).
The Department of Homeland Security’s Deputy Press Secretary, Peter Boogaard, acknowledged that New York City is not part of the nationwide fusion center structure, but said “DHS has a very close working relationship with the NYPD through long-standing partnerships” and that those partnerships “contribute to the continued safety and security of New Yorkers.”
But a DHS official claimed that the department cannot influence the NYPD because it does not provide direct funding to the city.
That, according to Riegle, is a “disingenuous” explanation of how federal grant funding works. “It’s an artful way of not addressing the issue,” he said. According to Riegle and others, although UASI funds are distributed through the states, they are prohibited from being used for purposes other than New York City security programs.
Eric Sanders, a former NYPD officer and now a civil rights attorney, said the controversy over the NYPD surveillance effort is symptomatic of larger public policy failures.
“Is the NYPD a local police department or a national police department?” asked Sanders. “They’re engaged in international intelligence gathering. At what point are they exceeding authority?” According to Sanders, although New York City is a major target for terrorists the city has become too powerful in the homeland security debate and has been able to take advantage of a lack of political will at the federal level to conduct meaningful oversight of data collection and storage efforts.
Donna Lieberman, executive director of the New York Civil Liberties Union, agrees.
“There’s no doubt in my mind that the post-9/11 mentality that would do away with the very basic protections put in place over 200 years of our democracy in order to get at some global terror target has its roots in the national approach to terrorism,” said Lieberman. But that national approach, which Lieberman characterized as a siege mentality, “is informed in a significant way by what the NYPD has done and said.”
The Silence Is Deafening
While several New York City Council members contacted by Breaking Gov did not respond to calls and emails requesting comment about the NYPD’s surveillance and data collection programs, questions about NYPD’s actions have caught the attention of Rep. Rush Holt (D-N.J.).
Holt on Sept. 13 sent a letter to Attorney General Eric Holder, calling for a special counsel to investigate whether federal laws have been broken. The letter, obtained by Breaking Gov, asks the Department of Justice to find out if the NYPD has violated the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure, and Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race or ethnicity in all federally assisted programs.
One major area of concern to those who question the legality of the NYPD’s actions is the storage and processing of the electronic data collected by the so-called “Demographics Unit.” To date, reports show that the data was stored on computers housed in a separate office and not connected to the department’s main intelligence database, which is subject to regular legal oversight.
“The issue here is predication,” said a former FBI agent with more than 25 years of investigative experience, who spoke to Breaking Gov on condition of anonymity. Predication is typically a short statement used by law enforcement at the start of an investigation to identify criminal offenses that have been committed or the elements needed to prove that a crime has occurred.
“If their guidelines call for predication, it will be there,” said the former FBI agent, “If they don’t disclose it then something is wrong with that picture.”
So far, the picture painted by the public reaction of New York City Mayor Michael Bloomberg and NYPD Commissioner Ray Kelly – both of whom have refused to answer questions about the details of the NYPD surveillance program and how the information is stored and protected – appears to be one of deliberate obfuscation.
“The lack of oversight is intentional,” said Cyrus McGoldrick, Civil Rights Manager for the Council on American-Islamic Relations in New York, referring to the NYPD’s decision to keep their surveillance database separate from other systems and a secret. “Ray Kelly really sees himself as a cowboy and a model for the new age of the police state,” said McGoldrick.
“We need to really look for these data collection models around the country. If this happened in New York, I would be shocked if it’s not happening elsewhere.”
And it already has. In 2007, for example, the American Civil Liberties Union (ACLU) unearthed a Defense Department program that involved military spying on American citizens engaged in constitutionally-protected activities, such as involvement in public protests. The Pentagon eventually shut down the database, known as Talon, and replaced it in May 2010 with the FBI’s eGuardian system.
“I can certainly commiserate with those who want to protect the country, but we can’t roll-up the flag to protect it,” said a former director of a federal Information Sharing and Analysis Center (ISAC), who spoke on condition of anonymity. “We live in a free society and that comes with risks. But I’m not prepared to allow any agency to erode the Constitution to protect me. That’s not a tradeoff I’m willing to make,” the official said.
As might be expected, not all homeland security and law enforcement experts see a problem with what the NYPD has done.
Roger Cressey, the former Chief of Staff of the President’s Critical Infrastructure Protection Board, said he doesn’t think the NYPD has done anything outside the boundaries of their mandate to protect the city. “Every police force wishes they had what NYPD has put together,” said Cressey. “I don’t think they’ve gone off the reservation at all. They are aggressive but they have to be, because they’re frankly the only target that matters these days,” he said.
“These actions by the NYPD came out of a genuine desire to protect America,” said Don L. Rondeau, President of Intellishare, an intelligence information sharing portal for government agencies and private sector critical infrastructure operators. “And while I have serious concerns, they start above and beyond the police agency. Somewhere, somebody gave direction to the police. And I’m very interested in what the mayor knew,” said Rondeau.
“My experience has been that the NYPD commissioner knows what’s going on in his department,” said the DHS official who spoke to Breaking Gov. “The commissioner and his deputies know what’s going on. The premise that these programs (that led to the “Moroccan Initiative”) were not the work of 16 cops sitting around deciding to do this on their own is a fair supposition.”
The New Homeland Security Police
At an undisclosed location in the southern part of Manhattan, the NYPD operates a central data hub where data from thousands of security cameras, license plate readers and radiation detection devices are monitored and sometimes stored. The data center is known as the Lower Manhattan Security Coordination Center and is part of the NYPD’s Domain Awareness System.
The policy also states that “no person will be targeted or monitored…solely because of actual or perceived race, color, religion or creed, age, national origin, alienage, [or] citizenship status.”
Stewart Baker, who served as the first assistant secretary for policy at the DHS and who is now a partner at the Washington, D.C. law firm Steptoe & Johnson LLP, said the data collected by the NYPD during the so-called “Moroccan Initiative” is “the kind of thing you would expect a good police officer to know.” The important question as far as Baker is concerned is where are the abuses?
“If you spend all your time worrying about abuses that haven’t happened, you are going to end up with a much less effective anti-terrorism effort,” said Baker, who also served as the former General Counsel at the National Security Agency (NSA).
But Riegle said privacy was “the number one risk we faced in the national network and it was the number one thing we concentrated on” when the DHS established the nationwide fusion center concept. “It got to the point where we demanded that all of the fusion centers produce their civil liberties and privacy policies before we would send out another dollar,” said Riegle.
According to Boogaard, the DHS has taken multiple steps to ensure that fusion centers around the country abide by all necessary privacy laws. “Every fusion center’s policy is individually reviewed to ensure that it meets or exceeds federal standards,” said Boogaard.
“But in New York, we don’t know what they’re doing,” said Riegle.
Despite the assurances offered by DHS and others, the former federal ISAC official who spoke to Breaking Gov took issue with the “security at all costs” mindset that permeates almost every corner of the post-9/11 homeland security policy realm. “We hear all the time that we have to get used to some inconvenience and we have to get used to being a little less free,” the official said. “That’s crap. That’s not only giving in, it’s accomplishing the stated goal of terrorists.”
But the NYPD’s actions could have a much more devastating impact on the national information sharing effort, said Riegle.
“What concerned me when I was in charge of that effort was we didn’t have visibility on [New York],” he said. “And you’re always one constitutional privilege violation away from a cease and desist order, which would put us back to where we were on Sept. 10, 2001.”
Feeling The Heat?
The New York City Council on Oct. 7 held an oversight hearing during which members expressed concern about what they fear is illegal spying by the NYPD on law-abiding, American citizens.
NYPD commissioner Ray Kelly told the council that “covert operations may be the only effective way to identify homegrown terrorists,” and acknowledged the existence of the so-called “Demographics Unit.” Kelly also attempted to reassure the council that the NYPD has not broken any laws and that it only follows “leads wherever they take us.”
But Kelly’s testimony left out important qualifications to the notion that the NYPD only follows leads in ongoing criminal investigations or potential crimes.
The reality is that the NYPD is taking advantage not only of its outsider status in the national fusion center architecture, said Riegle, but it is leveraging a series of new guidelines that former Attorney General Michael Mukasey put in place for the FBI and other changes made by the Bush administration, which govern intelligence collection targeting U.S. persons.
The changes to the rules issued by Mukasey allow the F.B.I. to open an investigation of an American citizen, conduct surveillance, mine private data and take other investigative steps without any basis for suspicion or showing criminal predicate. Likewise, changes made during the Bush administration (Executive Order 12333) allow federal law enforcement to assume, without evidence, a possible criminal or terrorist threat and begin a surveillance and data collection effort.
And that gives experts like Riegle cause for serious concern. “The American people need to wake up,” said Riegle. “When you start being able to presumptively assume an issue you’re in that very grey area that many of the European block countries were in before the fall of communism,” he said. “They’re eventually going to get into a position where the FBI or the NYPD has more authority than even the Stasi had,” said Reigle, referring to the infamous state security service in East Germany during the Cold War.
But McGoldrick, the CAIR civil rights manager in N.Y., who also testified at the council hearing, said for the first time he felt there was some concrete progress on increasing oversight of the NYPD.
“It’s a slow process and this was step one,” said McGoldrick. “But now on almost every level there’s a push for accountability on the NYPD. They’re scared. This was the first time I ever saw Ray Kelly stammer.”